NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 19 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JORGE ALBERTO ASCENCIO No. 18-70465
GONZALEZ, AKA Jorge Alberto Ascencio
Gonzalez, AKA Jose Pacheco Martinez, Agency No. A200-975-078
Petitioner,
MEMORANDUM*
v.
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 4, 2020**
Pasadena, California
Before: LIPEZ,*** RAWLINSON, and N.R. SMITH, Circuit Judges.
Jorge Alberto Ascencio Gonzalez, a native and citizen of El Salvador,
petitions for review of a decision of the Board of Immigration Appeals ("BIA")
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Kermit V. Lipez, United States Circuit Judge for the
First Circuit, sitting by designation.
affirming an immigration judge's denial of his claims for withholding of removal
and protection under the Convention Against Torture ("CAT").1 Our jurisdiction is
governed by 8 U.S.C. § 1252. We deny the petition for review.
1. Ascencio argues that the agency lacked jurisdiction over his removal
proceedings because he was issued a Notice to Appear ("NTA") that did not
include the time, date, or location of his initial removal hearing. But "an initial
NTA need not contain time, date, and place information to vest an immigration
court with jurisdiction if such information is provided before the hearing." Aguilar
Fermin v. Barr, 958 F.3d 887, 889 (9th Cir. 2020). Ascencio received a Notice of
Hearing that supplied the missing date, time, and location information before his
initial hearing. Thus, the immigration court had jurisdiction over Ascencio's
removal proceedings.2
2. The BIA's determination that Ascencio had not established eligibility for
withholding of removal is supported by substantial evidence. Ascencio concedes
that the particular social group ("PSG") that he proposed before the immigration
judge is "not legally cognizable." On appeal to the BIA, Ascencio argued for the
first time that he would face persecution in El Salvador based on his membership
1
The immigration judge also denied Ascencio's asylum claim, and he did
not dispute his ineligibility for asylum before the BIA.
2
The Respondent's motion to stay the proceedings is denied.
2 18-70465
in a different PSG. The BIA is "an appellate body whose function is to review, not
to create, a record," Honcharov v. Barr, 924 F.3d 1293, 1296 (9th Cir. 2019)
(quoting In re Fedorenko, 19 I. & N. Dec. 57, 74 (BIA 1984)), and it "has the
authority to prescribe . . . procedural default rules," id. Thus, the BIA did not err
by declining to consider the new PSG for the first time on appeal.
3. The BIA's denial of CAT relief is also supported by substantial evidence.
The BIA properly upheld the immigration judge's findings that Ascencio had
demonstrated neither a particularized threat of torture should he be returned to El
Salvador, see 8 C.F.R. § 208.16(c)(2), nor that the police in El Salvador would
acquiesce in his torture by MS-13 gang members, see 8 C.F.R. § 208.18(a)(1).
The petition for review is therefore DENIED.
3 18-70465